Brannan v. State

• Decision Date: 04 February 2010
• Docket Number: No. 01–08–00179–CV.,01–08–00179–CV.
• Citation: 365 S.W.3d 1
• Parties: Angela Mae BRANNAN, Individually and as Independent Executrix of the Estate of Bob Albert Brannan, Deceased, Brooks and Mary Porter, Russell and Judy Clinton, Russell Clinton as Independent Executor of the Estate of Elizabeth Clinton, Deceased, Reg and Beaver Aplin, Partners d/b/a Benchmark Developing, Louise Bullard, Diane Loggins Clark, Joseph Cornell Dewitt, Lisa Marie Dewitt Fuka, Macario Ramirez, Chrissie Dickerson, Jeffrey Dyment, The Marvin Jacobson Family Holding Company, Charles T., Cathy, James, and Patricia Meek, Mark Palmer, James C. and Patricia Pursley, Kenneth C. and Andrea Reutzel, S & S Holdings, LLC, and Rogers Thompson, Executor of the Estate of P.E. Kintz, Deceased, Appellants, v. STATE of Texas, Texas General Land Office, Texas Land Commissioner Jerry Patterson, in his Official Capacity, Texas Attorney General Greg Abbott, in his Official Capacity, The Village of Surfside Beach, Texas, Mayor James Bedward, Surfside Beach, Texas, in his Official Capacity, Environmental Defense, Surfrider Foundation, and Criminal District Attorney Jeri Yenne, in her Official Capacity, Appellees.
• Court: Texas Court of Appeals

365 S.W.3d 1

Angela Mae BRANNAN, Individually and as Independent Executrix of the Estate of Bob Albert Brannan, Deceased, Brooks and Mary Porter, Russell and Judy Clinton, Russell Clinton as Independent Executor of the Estate of Elizabeth Clinton, Deceased, Reg and Beaver Aplin, Partners d/b/a Benchmark Developing, Louise Bullard, Diane Loggins Clark, Joseph Cornell Dewitt, Lisa Marie Dewitt Fuka, Macario Ramirez, Chrissie Dickerson, Jeffrey Dyment, The Marvin Jacobson Family Holding Company, Charles T., Cathy, James, and Patricia Meek, Mark Palmer, James C. and Patricia Pursley, Kenneth C. and Andrea Reutzel, S & S Holdings, LLC, and Rogers Thompson, Executor of the Estate of P.E. Kintz, Deceased, Appellants,

v.STATE of Texas, Texas General Land Office, Texas Land Commissioner Jerry Patterson, in his Official Capacity, Texas Attorney General Greg Abbott, in his Official Capacity, The Village of Surfside Beach, Texas, Mayor James Bedward, Surfside Beach, Texas, in his Official Capacity, Environmental Defense, Surfrider Foundation, and Criminal District Attorney Jeri Yenne, in her Official Capacity, Appellees.

No. 01–08–00179–CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Feb. 4, 2010.

Ted Hirtz, Houston, TX, for Appellant.

George W. Vie III, Mills Shirley L.L.P., Galveston, TX, Ken Cross, Asst. Attorney General, Laura Ruth Jacks, Austin, TX, Trey D. Picard, Assistant District Attorney, Angelton, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices ALCALA and HANKS.

OPINION ON REHEARING

ELSA ALCALA, Justice.

This appeal concerns the application of the Open Beaches Act at Pedestrian Beach in the Village of Surfside Beach on the Gulf Coast of Texas. ¹ Appellants, Angela Mae Brannan, Individually and as Independent Executrix of the Estate of Bob Albert Brannan, deceased, Brooks and Mary Porter, Russell and Judy Clinton, Russell Clinton as Independent Executor of the Estate of Elizabeth Clinton, deceased, Reg and Beaver Aplin, Partners d/b/a Benchmark Developing, Louise Bullard, Diane Loggins Clark, Joseph Cornell Dewitt, Lisa Marie Dewitt Fuka, Macario Ramirez, Chrissie Dickerson, Jeffrey Dyment, the Marvin Jacobson Family Holding Company, Charles T., Cathy, James, and Patricia Meek, Mark Palmer, James C. and Patricia Pursley, Kenneth C. and Andrea Reutzel, S & S Holdings, LLC, and Rogers Thompson, Executor of the Estate of P.E. Kintz, deceased, (collectively, “the Owners”), have filed a motion for rehearing and for en banc reconsideration of our opinion issued on August 28, 2009. We deny the rehearing, but we withdraw our opinion and judgment of August 28, 2009 and substitute this opinion and judgment in their place. Because we issue a new opinion in connection with the denial of rehearing, the Owners' motion for en banc reconsideration of our prior opinion is moot. Richardson–Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 472 (Tex.App.-Houston [1st Dist.] 2006, pet. denied).

The Owners appeal from the trial court's judgment in favor of appellees, the State of Texas, Texas General Land Office, Texas Land Commissioner Jerry Patterson, in his official capacity, Texas Attorney General Greg Abbott, in his official capacity, the Village of Surfside Beach, Texas, Mayor James Bedward, Surfside Beach, Texas, in his official capacity, Environmental Defense, Surfrider Foundation, and Criminal District Attorney Jeri Yenne, in her official capacity.

The Owners present four issues in this appeal. First, the Owners assert the State has not proven that a public beach easement has ever existed at Surfside Beach. Second and alternatively, the Owners assert that even if an easement existed at Surfside Beach, their houses should not be removed from the easement because the houses were built outside of the easement before the line of vegetation moved landward and the public's use of the beach under the easement can co-exist with the houses. The Owners' last two issues contend that they are entitled to damages because the ordered removal of their houses has resulted in a permanent taking of their property without compensation, and the denial of access to and utilities for their property by the State and Village has resulted in a regulatory taking.

After the trial court issued the injunction ordering the removal of all of the 14 houses on the easement, 11 of those houses were removed by the force of nature, leaving only three houses. We conclude the trial court properly ordered the removal of the three houses remaining on the easement that moved to them and properly denied these three owners' claims for damages due to a permanent taking. We also conclude the trial court properly denied all the Owners' claims for regulatory taking damages. We affirm.

Background

The Owners had houses on beachfront lots in the Village of Surfside Beach. The Owners' lots are in an approximately one and one-half mile area known as “PedestrianBeach” because the Village prohibited driving along that stretch of beach in the late 1970s or early 1980s.

For the most part, the Owners' houses were built in the 1960s, and, at the time of construction, were on the landward side of the vegetation line. In 1998, Tropical Storm Frances moved the vegetation line landward, making the houses stand between the water's edge and the vegetation line. David Dewhurst, who was then the commissioner of the General Land Office, sent a letter to the Attorney General of Texas, identifying a number of houses in Surfside Beach that were seaward of the vegetation line, claiming these houses were encroachments on the public beach in violation of the Open Beaches Act. The Attorney General decided to take action to remove houses that were an “immediate threat to public health and safety” or that “significantly blocked public access.” The Attorney General informed the Owners (or their predecessors in title) that their houses did not meet either criteria and were not subject to removal. However, because the General Land Office had classified the Owners' houses as encroachments on the public beach, the Village refused permits to allow the Owners to repair septic systems and cut off water to some of the properties at issue.

In 2001, a number of property owners filed suit against the State and the Village, seeking a declaratory judgment affirming their right to repair, maintain, and access their houses and also seeking damages for the loss of use of the property following Tropical Storm Frances. The State filed a counterclaim, seeking removal of the houses pursuant to the Open Beaches Act. ² Most of the original plaintiffs agreed to nonsuit their claims in return for the State dropping its counterclaim for removal of their houses. The remaining plaintiffs amended their petition, adding a claim that the imposition of the public beach easement and the removal of their houses were takings without just compensation.

Of the Owners currently involved in this appeal, the ones involved in the original litigation were the Brannans, the Porters, and Clinton, individually and as executor. For clarity, when we refer to these original plaintiffs as a separate group, we will call them the Original Owners. In their original petition, first amended petition, and second amended petition, the Original Owners acknowledged the existence of an easement at Surfside Beach in the Gulf Coast of Texas. The Original Owners argued that the easement at Surfside Beach did not exist on the land underneath their houses, but acknowledged the existence of an easement on the land seaward of their houses.

In examining the Original Owners' live pleadings at the time of the State's motion for summary judgment, the Owners described the situation as follows:

At the time each of these houses was constructed all were landward of the vegetation line. The houses did not move. They did not encroach onto the public easement. The vegetation line has moved landward. The public easement has moved landward with it. Using a State developed concept called a “rolling easement,” developed from the common law of meandering easements, the public beach easements have been imposed on the land on which these Plaintiffs' houses stood.

The owners also stated,

The beach houses are now seaward of the current vegetation line. Public easements of use and lateral passage have been imposed upon the real property on which the beachhouses stand.

In a section listing defenses to the State's counterclaim, the Original Owners asserted,

The public's easement of use of the land on which the [Original Owners'] beachhouses sit is not unrestricted. The public's meandering easement is limited by conditions on the land at the time the easement is imposed. One of these is the existence of the [Original Owners'] beachhouses.....

Not only did the live pleadings by the Original Owners acknowledge the existence of the easement, but their responses to the State's partial motion for summary judgment similarly treated the existence of the easement as an undisputed fact. In their response, the Original Owners said that their “initial intent in filing their action for declaratory judgment was to ask the State court to determine and to declare the scope of the public easement of use when it migrates onto private land on which there are existing houses.” They also stated, “One would think that after hearing the evidence that a District Court in Texas could work out an accommodation between the rights of the public and the rights of the owner.” An affidavit from one of the Original Owners, Brooks Porter, averred that the “vegetation line in the vicinity of my beachfront properties, and the public easement it delineates at Surfside, migrates....” Furthermore, he stated, “As a plaintiff I joined in the Original Petition to ask this District Court to determine the scope of the public easement which had been imposed on my property.” The Original Owners primarily argued that when the easement migrates into their property, their houses...